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In re Oxbow Carbon LLC Unitholder Litig.

Court of Chancery of Delaware

July 27, 2017, Submitted; July 28, 2017, Decided

Consol. C.A. No. 12447-VCL

Opinion

MEMORANDUM OPINION

LASTER, Vice Chancellor.

William I. Koch and his affiliates (collectively, the "Koch Parties") wish to call as a rebuttal witness R. Robert Popeo, an attorney and senior partner with the law firm of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. ("Mintz Levin"). Mr. Popeo acted as the Koch Parties' principal counsel during the events giving rise to this litigation and for much of the case. He attended several of the Koch Parties' depositions, including the deposition of Mr. Koch. He was present throughout trial, although he did not handle any witnesses.

Individuals and entities affiliated with the Crestview private equity complex (collectively, "Crestview") have moved for an order precluding Mr. Popeo from testifying. They contend that Mr. Popeo is not really a rebuttal witness, but rather a delayed part of the Koch Parties' case-in-chief They also argue [*4]  that Mr. Popeo was not timely identified on the Koch Parties' trial witness list, that he failed to comply with the court's order that trial witnesses be sequestered, and that his testimony violates the witness-as-advocate rule.

As I see it, my task as finder-of-fact is to understand the underlying evidence to the best of my ability, then evaluate and weigh that evidence to make the most accurate factual findings that I can. With that role in mind, I believe the interests of justice are best served by hearing Mr. Popeo's testimony and giving it the weight it is due. The motion for protective order is therefore denied.

I. THE ORDER OF PROOF

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2017 Del. Ch. LEXIS 135 *; 2017 WL 3207155

IN RE OXBOW CARBON LLC UNITHOLDER LITIGATION

Notice: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

Prior History: In re Oxbow Carbon LLC, 2017 Del. Ch. LEXIS 396 (Del. Ch., Feb. 14, 2017)

CORE TERMS

Parties, rebuttal witness, witnesses, rebuttal, case-in-chief, documents, burden of proof, adverse witness, sequestration, pretrial, questioning, notice, fact witness, presentation, tactical, planned, argues

Evidence, Types of Evidence, Testimony, Presentation of Evidence, Civil Procedure, Pretrial Matters, Conferences, Case Management, Trials, Bench Trials, Burdens of Proof, Allocation, Discovery, Methods of Discovery, Expert Witness Discovery, Sequestration, Attorneys, Disqualification of Counsel, Legal Ethics, Professional Conduct, Competency, Attorneys